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Federal judge rules decision to allow new coal leasing was unlawful

Published by admin on Wed, 04/24/2019 - 2:23pm

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Wyoming News Exchange

By Heather Richards

Casper Star-Tribune

Via Wyoming News Exchange

CASPER — The Trump administration’s elimination of a hallmark of the “war on coal” — an Obama-era moratorium on new coal leasing — was ruled unlawful Friday by a federal judge in Montana because the administration failed to consider the possible fallout from its decision.

U.S. District Court Judge Brian Morris’ ruling comes on the heels of recent California judge’s decision that the Trump administration should not have halted a broad study of how the federal government levies taxes on coal production on federal land.

That study preempted the coal lease moratorium.

What happens next with the moratorium and the coal program review hasn’t been decided. Morris, an Obama nominee confirmed by the Senate in 2013, ruled that revoking the moratorium was a major decision requiring environmental review of its consequences, but he has chosen to wait before offering a remedy. The judge has obliged both sides of the lawsuit to meet in good faith and file a joint proposal of remedy within 30 days. The judge’s final decision will follow.

The moratorium decision is one of many procedural checks on the Trump administration that has come from the courts, as the president’s agencies attempt to deregulate in favor of energy development and non-government agencies push back.

The National Mining Association’s CEO Hal Quinn critiqued the moratorium decision in a statement Monday, arguing that the real violation of federal law had happened under the Obama administration by halting new leasing. He called the judge’s direction a “sharp departure from precedent.”

Those in favor of the moratorium — and the coal royalty review — argue that the courts have now righted a wrong.

“In two weeks, two different courts have rebuked the Trump administration’s unabashed attempts to give the coal industry a sweetheart deal by reversing much-needed reforms to the federal coal program,” said Bob LeResche, vice chairman of the Powder River Basin Resource Council in northern Wyoming, in reference to the coal moratorium and coal review decisions.

LeResche said the coal review is particularly important today as the supply and demand of the coal market is imbalanced.

“The two decisions hand Interior a chance to realign its coal policies with public opinion and the best interests of coalfield communities,” he said in a statement. “We urge the new Secretary to take it.”

More than 40 percent of coal produced in the country comes from these federal leases on federal land, the judgment notes. Of that federal coal, the vast majority — some 85 percent — comes from Wyoming and Montana’s Powder River Basin.

During the Obama years, the federal government called for an overhaul of the coal-leasing program, starting with a study of both the most rudimentary aspects of coal mining on federal land — where should it mine and when should it lease — to larger questions of how the industry on federal land impacts the environment and what role federal coal plays in serving the country’s energy demands.

Until this review was completed, the Obama administration halted all new leasing. This action was viewed as part of the “war on coal” that the industry and states like Wyoming have battled in recent years.

Months after the Trump administration took office, the coal moratorium was undone per an executive order and a subsequent order from then-Interior Secretary Ryan Zinke. They stated the public interest was not served by the moratorium and the impending study was unnecessary.

Although, little to no interest in new coal leasing remained in Wyoming because of both the weakened coal market and the large leases granted to biggest players in the Powder River Basin before the moratorium.

The Zinke and Trump rollback prompted a lawsuits from groups like the Center for Biological Diversity, the Sierra Club, and the states of California and New Mexico on the side of the moratorium and states like Wyoming, the National Mining Association and the Trump administration in favor of the moratorium’s end.

Proponents of the federal coal program’s review maintain the federal government needs to reform its approach to leasing and taxing coal. Prior to coal’s downturn, they argued that coal companies get an unfair deal on taxes compared to other fossil fuels like oil and gas.

The coal industry adamantly protested this view.

Environmental groups and conservationists have been avid opponents of the Trump administration’s deregulation-heavy approach to public lands, environmental protections and industry oversight, often using the courts to try to slow or block the White House.

And the courts have been receptive, often siding with the non-government organizations in recent years.

“It’s clear that what we are seeing is the courts are very troubled by the administration’s failure to seriously consider the environmental impact of their decisions such as greenhouse gas emissions, whether it’s coal leasing or oil and gas,” said Sam Kalen, an energy and environmental law expert and professor at the University of Wyoming.

How this plays out on the ground, however, has not necessarily been a dramatic victory for environmental groups.

The decision Friday joins other procedural or administrative wins for those groups, which have forced the administration to slow down or follow the legal procedure in its quest to streamline and speed up energy development. For instance, a court ruling forced the Bureau of Land Management to pull more than 700,000 acres overlapping with sage grouse habitat from an oil and gas lease sale in order to offer longer public comment periods.

Months later, however, most of that land was still offered for sale.

In another example, a court decision in recent months said the BLM failed to take into account the broad climate-related effects of Wyoming oil and gas leases distributed a few years ago. This resulted in a fairly brief adjustment of paperwork. The rapid response from the federal agency has been criticized by environmental groups like WildEarth Guardians, who appealed to the Interior Secretary David Bernhardt in a request for more than the allotted six business days to consider the BLM’s court-ordered review.

A wide revision of the sage grouse protections across 11 Western states weakened some federal protections for the bird, despite dramatic refutation of those changes by groups like the Audubon Society. Last week, conservation groups sued for an injunction on the Trump administration’s changes, which they said would harm the bird.

Kalen of UW said these administrative delays and setbacks may be more significant than they appear.

The court battle can generate more public scrutiny, the wait for a court decision or an agency response to a court decision can be costly for industries involved, and the time eaten up by court and administrative red tape could freeze the debate until a new political climate is in place, Kalen said.

“If it takes a year or two years, hopefully, if you’re the NGO, the person in the White House will be gone,” he said. “Delay itself can actually accomplish certain things.”